In Ridgeway v McGuinness, The Ridgeway (Oxshott) Management Company (RO) sought to prevent Emma and Terence McGuinness from replacing their four bedroom single property with two separate dwellings on the same plot.
During the proceedings, Mr and Mrs McGuinness claimed they had been ostracised by their “nimby” neighbours, who are now treating them as pariahs and banned them from the wine society. Despite these claims, they had been invited to street parties to celebrate the Jubilee and Coronation, both of which they attended. Neighbours also brought an injunction to prevent them from bringing building materials on to the site.
Most of the 47 houses on the Ridgeway estate in Oxshott were built in the 1930s. Mr and Mrs McGuinness purchased Birch Mead in 2013. The couple obtained planning permission, after an appeal, to replace their £1.5 million home with two three bedroom properties: one to house themselves and children, and the other to house Mrs McGuinness’ parents, Mr and Mrs Barnett.
The RO purchased the road and verges in 1988, and the then owners of the properties became shareholders in the company. The couple received documentation regarding the nature of the road before they purchased their home. Later, as a board member himself, Mr McGuinness was fully aware of the opinion of others with regard to ‘infilling’.
His Honour Judge Simon Monty said that the McGuinnesses had purchased their property with their “eyes open” and should have been aware of the binding nature of the easements. He detected in them a “stubborn reluctance” to explore other ways of housing Mrs McGuinness’s father, although he acknowledged that they had acted properly by discussing their plans with the management company and their neighbours before applying for planning permission.
When it was suggested that the RO had been hypocritical when dealing with the McGuinness’ plans because other board members had been allowed to extend their properties, Mr Monty found no evidence because “there is a real difference between an extension to an existing house, and two new houses on one plot”.
Although Mr and Mrs Barnett would initially have lived in the smaller of the proposed properties, should it be sold in the future it could be owned and occupied by a family which would result in a “greater call on the services”. It was also the case that “the rights under the easements are limited to the use of the plot for a single dwelling house”.
Nor did the fact that planning permission had already been granted have any weight, as it would undermine the easements and deeds which had already been put in place, and which the McGuinnesses knew about and had accepted.
Mr Monty said that he had not found his decision difficult and an award for damages was not appropriate, and granted an injunction to the RO. As such, he declared that the rights granted under the deed would not accommodate the proposed development.
Although no damages were to be awarded, Mr Monty considered how the level of damages would have been determined and the “right level” had this been the case. Two expert witnesses were called, each drawing a very different conclusion.
For the RO, Christopher Smart FRICS valued the uplift in value derived from the release of the restriction in the easement. He said the development was not economically viable and therefore the conventional “negotiating damages” approach that would result in a nil sum would be unfair to the RO. His assessment was instead calculated on the economically viable development of an additional house which would be valued at £226,000. His suggestion for damages as therefore 35% of this sum, or £80,000.
For Mr and Mrs McGuiness, Ruaraidh Adams-Cairns FRICS suggested that a negotiation between the parties might conclude a figure of £10,500.
Mr Monty said that neither had approached the matter correctly. Mr Smart’s approach would be based on a “hypothetical development and sale which is never going to take place” which he could not accept. Mr Adams-Cairn’s approach was “unrealistic” and based on what the RO would charge in a different situation.